LOS ANGELES (August 25, 2015) AIDS Healthcare Foundation (AHF) has learned that California’s Department of Industrial Relations, Division of Occupational Safety and Health’s Appeals Board (Cal/OSHA), has upheld an appeal of several workplace safety violations issued by Cal OSHA against Treasure Island Media, Inc. (TIM), a Bay Area adult film production company that primarily serves and produces condom-less, or ‘bareback’ films for the gay market. Despite being compelled to formally reduce the severity of the designation of two of the safety violations, which triggered a predetermined reduction in fines, California’s workplace safety watchdog upheld the citations while at the same time reiterated and clarified its jurisdictional oversight over health and safety in the multi-billion dollar California industry.

In a ruling that should give the adult industry pause, OSHA’s Appeals Board’s ruling, executed August 13, 2015, found that OSHA’s Bloodborne Pathogens statute section 5193 does apply to the adult industry, and that for OSHA purposes, adult film performers are to be classified as ‘employees’ and not as ‘independent contractors.’ The adult industry has long argued that OSHA’s safety regulations do not apply to them—that the state’s Bloodborne Pathogens statute section 5193 applies to nurses and doctors—and that adult performers are considered independent contractors and not employees—a status that would relieve the industry of compliance with many OSHA workplace safety regulations.

“Not only did OSHA uphold the safety violations that are the heart of this complaint, the Appeals Board also made it abundantly clear in this ruling that OSHA section 5193 of the Bloodborne Pathogens statute does, in fact, apply to the adult film industry despite the industry’s years-long protestations otherwise,” said Michael Weinstein, President of AIDS Healthcare Foundation. “In addition, this OSHA Appeals Board ruling unequivocally states that the adult film performers are employees, not independent contractors, as the industry regularly asserts, and as such are covered under OSHA workplace safety statutes.”

Several of Treasure Island’s OSHA citations arose from one 2009 film submitted as evidence by AHF in some ‘Notice of Safety or Health Hazards’ complaints to Cal/OSHA. The film depicts unprotected sex involving several men, as well as scenes depicting one of the men receiving the previously collected semen of over 1,000 men into one of his body orifices.

And while Cal/OSHA was compelled to reduce the severity of two Bloodborne Pathogens statute section 5193 citations in the appeal from “serious” to “general” violations (with a corresponding decrease in fines), both citations were ultimately upheld by OSHA. Cal/OSHA was forced to interpret and judge the Treasure Island Media case appeal under older federal and state standards in effect at the time. OHSA had to consider the appeal through the lens of “substantial probability” of infection rather than the newer, current standard: a “realistic possibility” of infection. Judging standards didn’t change until after the TIM citation and appeal back in 2010. The “Realistic possibility” judging standard in effect today only requires evidence of exposure (e.g., ejaculation on mucous membranes) to be considered a ‘serious’ violation, and is the standard going forward for all complaints.

“If this ruling is a “triumph,” as Treasure Island claims, they certainly have an odd view of victory,” added AHF’s Weinstein. “This ruling confirms that OSHA regulations apply to porn sets and that adult film performers are employees covered by health and safety regulations. We also now know that the criteria for judging OSHA violations going forward is under the newer ‘realistic possibility’ of infection, which will make it easier to cite companies and protect adult film workers.”